Taylor v. Metropolitan Development Com'n of Marion County
Decision Date | 28 June 1982 |
Docket Number | No. 2-1281A422,2-1281A422 |
Citation | 436 N.E.2d 1157 |
Parties | Maria TAYLOR, Michael J. Grannan, Edna E. Grannan, and Edward C. Campbell, d/b/a Uncle Earl's Tavern, Appellants (Defendant below), v. The METROPOLITAN DEVELOPMENT COMMISSION OF MARION COUNTY, Appellee (Plaintiff below). |
Court | Indiana Appellate Court |
Joseph F. Quill, L. Craig Turner, Quill, Boberschmidt, Miller & Turner, Indianapolis, for appellants.
Larry F. Whitham, Asst. Corp. Counsel, Indianapolis, for appellee.
Maria Taylor, Michael J. Grannan, Edna E. Grannan, and Edward C. Campbell d/b/a Uncle Earl's Tavern (Campbell) appeal the judgment of the trial court in favor of the Metropolitan Development Commission of Marion County (Commission) in an action brought by the Commission against Campbell.
Campbell argues the judgment of the trial court enjoining his use of certain real estate in Marion County as a "tavern" is erroneous because
1. the use constituted a legally established nonconforming use and
2. the Commission was barred from seeking relief by its laches.
We affirm.
Campbell argues the trial court's judgment is contrary to law because the evidence before the trial court established his defense of nonconforming use. On appeal, Campbell's burden is to establish the evidence inexorably leads to but one conclusion and the fact finder has reached another. Lamb v. Conder, (1975) 166 Ind.App. 293, 335 N.E.2d 625.
Campbell correctly asserts the undisputed evidence is that a lawful, nonconforming use (liquor store) did exist on the real estate on the effective date of the zoning ordinance. However, the use of the real estate enjoined by the judgment is not use as a liquor store but use as a tavern.
Campbell then argues a nonconforming use can be changed to another nonconforming use of the same or lesser restriction. This argument is flawed. The extent to which a change is permissible depends upon the provisions of the zoning ordinance. Jacobs v. Mishawaka Bd. of Zoning Appeals, (1979) Ind.App., 395 N.E.2d 834. In Jacobs this court reversed the trial court's determination a change in use from a service station to a used car business constituted an impermissible change in use of a nonconforming use. However, this court found the subject zoning ordinance allowed an existing nonconforming use to change to another nonconforming use of the same or lesser restriction. At the same time the Jacobs court cautioned:
In this case, Campbell failed to introduce evidence the zoning ordinance in question contained a like or similar provision allowing a change in a nonconforming use to another use of the same or lesser restriction. Parenthetically, we also note Campbell failed to introduce evidence use as a tavern is a use of the same or lesser restriction as use as a package liquor store.
Furthermore, the policy of zoning ordinances is to secure the gradual or eventual elimination of nonconforming uses and to restrict or diminish, rather than increase, such uses. Jacobs, 395 N.E.2d at 836. Thus, our courts have strictly limited a nonconforming use to the particular use in existence on the effective date of the zoning ordinance. Chizum v. Elkhart Co. Plan Comm., (1970) 147 Ind.App. 691, 263 N.E.2d 654 ( ); O'Banion v. State ex rel. Shively, (1969) 146 Ind.App. 223, 253 N.E.2d 739 ( ). We therefore disagree with Campbell's broad classification of the legal nonconforming use on the subject real estate on the enactment of the zoning ordinance...
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